Photographers Band Together to Protect Work in ‘Fair Use’ Cases

To many photographers, a federal appeals court ruling last spring that permitted Richard Prince to use someone else’s photographs in his art was akin to slapping a “Steal This” label on their work.

The United States Court of Appeals for the Second Circuit reasoned that as long as Mr. Prince’s work transformed the images into original art, he was not violating anyone’s copyright.

But photographers are pushing back against that interpretation. Several membership and trade organizations have banded together recently to press their cause in Congress and the courts.

More than half a dozen groups, including the National Press Photographers Association, Professional Photographers of America and the Picture Archive Council of America, have joined together to submit a friend of the court brief to support the photographer Patrick Cariou, after part of his case against Mr. Prince was sent back to a judge for reconsideration. That informal coalition is considering hiring a Washington lobbyist, said Victor Perlman, general counsel for the American Society of Media Photographers, and, last month, several of the groups sent representatives to meet with legislators, including members of a House of Representatives subcommittee.

One photographer has also decided to pursue a similar court fight, despite last spring’s ruling. In December, Lois Greenfield, a dance photographer, filed a lawsuit in federal court in Manhattan, arguing that paintings of dancers a Texas artist made violated her copyright.

But lawsuits are expensive and, therefore, rare. The focus now, Mr. Perlman said, should be on persuading Congress to change matters. “The courts have taken an approach to fair use that we do not believe was originally intended,” he said. “A lot of what’s going to have to happen in fair use is going to have to happen on Capitol Hill.”

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A photo by Patrick Cariou.CreditPatrick Cariou/PowerHouse Books

Technological advances, shifting artistic values and dizzying spikes in art prices have turned the world of visual arts into a boxing ring for intellectual-property rights disputes. Photographers, in particular, are complaining not only that their work is being stolen by other artists, but also that their ability to create new work related to their originals is also being compromised.

Mr. Prince, who is known for reworking imagery created by others, cut out pictures from Mr. Cariou’s book on Jamaican Rastafarians, titled “Yes Rasta,” and then painted them or juxtaposed them with other images. When sales of these works at Gagosian Gallery in 2008 topped $10 million, Mr. Cariou sued.

Mr. Prince, backed by much of the fine-arts establishment, argued that he did not break the law because of what is known as the “fair use” doctrine, which allows artists — and others — to use copyrighted work in certain circumstances. Mr. Prince said he was covered by fair use because he had transformed the originals into something new.

The Warhol Foundation, which filed a brief on Mr. Prince’s behalf, essentially argued that by merely changing the context — placing a work in a museum or a gallery — an artist can transform someone else’s creation. Think of Marcel Duchamp’s putting a urinal in an art gallery or Mr. Prince’s rephotographing magazine ads featuring the Marlboro Man.

That argument failed to convince District Judge Deborah A. Batts of Manhattan, who ruled in 2011 in favor of Mr. Cariou, unsettling artists, museums and dealers who warned that the decision would choke creative expression.

Last spring, her judgment was overturned by a judicial panel that found Judge Batts’s criterion — that, to be considered “fair use,” a new work must comment on or relate to the original — too narrow. The only requirement, the panel said, was that a reasonable viewer find the new work “transformative.” Mr. Prince’s testimony that he had not intended “to create anything with a new meaning or a new message” was irrelevant. In November, the United States Supreme Court refused to review the case.

Now it was the photographers’ turn to panic. “Fair use started out as an exception to copyright law,” Mickey H. Osterreicher, general counsel for the National Press Photographers, said. “Now it seems that copyright is the exception to fair use.”

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Mr. Cariou’s photo used in a Richard Prince work, “Graduation.”

But Michael Straus, chairman of the Warhol Foundation board, cautioned that fair use “should not be read overly restrictively,” adding, “You don’t want to stifle creativity.”

Many copyright experts criticized the Second Circuit’s opinion for not saying how much transformation must take place before something is “transformative.” A complete reworking? An added smudge of paint?

Even the appeals court conceded that it was uncertain if five of the 30 collages and paintings made by Mr. Prince differed enough from Mr. Cariou’s pictures to qualify for the legally required transformation. The judges sent the part of the case dealing with those works back to Judge Batts and asked her to make a determination, but within the context of their expanded definition of fair use.

Hillel Parness, an author of the photographers’ brief in the Cariou case, said the point was to remind the court that even under the recently expanded interpretation of fair use, there are limits. Copyright holders have the “exclusive” right to make derivative works, which are defined as those that are “recast, transformed or adapted” from the original. Harry Potter, for example, is J. K. Rowling’s property, whether in the form of a book, a movie or a sequel.

“But if fair use were read as broadly as some suggest, it would destroy that right,” Mr. Parness said.

James Silverberg, an intellectual-property rights lawyer who has worked with American Photographic Artists, argues that if artists want to use someone else’s creation in their work, they should pay a fee. A movie based on a book may rake in millions, but the author is still compensated for her contribution, he said.

Mr. Osterreicher said the National Press Photographers have pushed for a small-claims copyright board to resolve the bulk of disputes, which usually involve only a few hundred dollars.

He said he is not expecting a legislative solution soon. He noted that the last copyright act was passed in 1976, and that “they started working on that in the 1950s, and so we got 1950s copyright law in 1976.”

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